Trabue v. Dwelling House Ins. Co.

• Decision Date: 13 March 1894
• Citation: 121 Mo. 75,25 S.W. 848
• Parties: TRABUE et al. v. DWELLING HOUSE INS. CO.
• Court: Missouri Supreme Court

25 S.W. 848

121 Mo. 75

TRABUE et al. v. DWELLING HOUSE INS. CO.

Supreme Court of Missouri, Division No. 2.

March 13, 1894.

INSURANCE AGAINST FIRE — CONDITIONS OF POLICY.

1. A condition avoiding the policy "if any change other than by death of the insured take place in the interest, title, or possession of the subject of insurance," is violated if, after the death of the insured, there is a partition proceeding, by which the property is set apart to the widow for life.

2. A policy insuring separate amounts on a building and its contents is not avoided as to the personalty by a forfeiture of the insurance on the realty, caused by a change in the title thereto, though it provides that the "entire" policy shall be avoided by any change in the title of the subject of insurance.

Case certified from St. Louis court of appeals.

Action by Christiana Trabue and others against the Dwelling House Insurance Company on a policy of insurance. There was judgment in the circuit court for plaintiffs. Defendant appealed to the St. Louis court of appeals. Judgment reversed, and cause certified to the supreme court. Affirmed in part and reversed in part.

Reuben F. Roy, for plaintiffs. Hicklin & Yates, for defendant.

GANTT, P. J.

The facts alleged in the petition and supported by the evidence, and which are not controverted by the parties in this suit, are as follows: The defendant company, by the policy of insurance on which this suit is based, insured Anthony E. Trabue against loss by fire or lightning for a term of five years, beginning at noon on the 20th day of April, 1888, in the sum of $800, on the dwelling house occupied at the time by said Trabue, and the sum of $250 on the contents of said dwelling house, and also $200 on other property which escaped the fire. The insured was the owner of the insured property. On the 1st day of February, 1889, said insured died at his place of residence, which was said dwelling house, in Ralls county, Mo. At the time of his death there were living with him at the said dwelling house his wife, the plaintiff Christiana Trabue, and three of his children, plaintiffs herein, to wit, Taylor J. Trabue, Kitty R. Trabue, and Mary G. Trabue. The insured left a will, by which he devised to his wife, Christiana Trabue, one-third of his estate during her widowhood, and the residue and remainder he devised to his four children, his only descendants, plaintiffs herein, in equal parts, with the provision that the portion willed to one child, Taylor J. Trabue, should go to him and his bodily heirs. The plaintiff Christiana Trabue was appointed executrix, and was qualified as such. The plaintiff Mary G. Trabue is a minor, and was a member of her father's family at the time of his death. The property was destroyed by fire October 16, 1890. At the time of the loss the plaintiff Christiana Trabue was occupying the house as a dwelling house. Three of her children — the plaintiffs Taylor J. Trabue, Kitty R. Trabue, and Mary G. Trabue — were living with her as a part of her family. Prior to said loss the plaintiffs, in an ex parte proceeding in the Ralls circuit court, had the real estate devised to them by said Trabue partitioned among them, and that portion on which said dwelling house stood, including said house, was set off to said Christiana Trabue during her natural life or widowhood. Notice and proof of loss were given, and the property was worth the amount claimed. The personal property insured was in said house in the possession of Christiana Trabue at the time of the loss. In March, 1864, just before their marriage, said Anthony E. Trabue and Christiana Trabue entered into a marriage contract, by which it was agreed that neither should have or inherit any interest in the property of the other, and it was provided that the said Christiana Trabue should not receive any dower or inherit any property of said Anthony E. Trabue, except as he should give or devise to her. The policy contained this clause: "This entire policy shall be void if any change (other than by death of the insured) take place in the interest, title, or possession of the subject of insurance, whether by legal possession or judgment or by voluntary act of the insured or otherwise." The circuit court gave judgment for plaintiffs for the whole amount of the policy, and defendant appealed to the St. Louis court of appeals, where the judgment was reversed without remanding, but, the decision being in conflict with the decision of the Kansas City court of appeals in Crook v. Insurance Co., 38 Mo. App. 582, the cause was certified to this court under the mandate of section 6 of the constitutional amendment of 1884.

1. The St. Louis court of appeals held the policy was avoided as to the dwelling house by the transfer of the title thereto by the partition proceedings and judgment therein between the devisees of Anthony E. Trabue, the loss having occurred after that decree. The court waived all discussion of the effect of the marriage contract, and whether the will alone, which became operative upon his death, worked a change of property, "other than by death of the insured," and placed their judgment upon the view that the partition proceedings had that effect. In that conclusion we concur. A partition of property, whether by deeds inter sese or by the judgment or decree of court, effects "the change of interest, title, or possession" against which the policy provided. Sherwood v. Insurance Co., 73 N. Y. 447; Burbank v. Insurance Co., 24 N. H. 550; Hine v. Woolworth, 93 N. Y. 75; Barnes v. Insurance Co., 51 Me. 110; Finley v. Insurance Co., 30 Pa. St. 311; Dreher v. Insurance Co., 18 Mo. 128.

2. As this judgment, on its face, only affected the real estate covered by said policy, the plaintiffs insist they are entitled to recover the insurance on the personal property, as to which there was no breach of any condition in the policy; but the defendant insists that by the use of the terms "entire policy" in said clause the whole policy is avoided for a breach in any respect. If defendant's contention be correct, it is a most appropriate subject for legislative correction at the earliest opportunity. But is this clause properly construed by the court of appeals? As early as the case of Loehner v. Insurance Co., 17 Mo. 247, it was held by this court that where a firm obtained insurance upon a storehouse and a stock of goods therein in separate amounts, and the insurance on the house was avoided because the interest in the house was incorrectly described in the application, the policy was not vitiated as to the goods; in other words, this court then held that such a contract was divisible. Afterwards, in Koontz v. Insurance Co., 42 Mo. 126, the action was on a policy by defendant on a livery stable, the live stock, and personal property, each separately stated and appraised. In that case Judge Wagner reviewed the cases, and admitted there was a conflict between the decisions, but held that Loehner v. Insurance Co., 17 Mo. 247, was a binding authority, and "cheerfully followed it, because this court regarded it as in consonance with justice." These two cases have never been overruled, or their authority questioned, until the decision of Insurance Co. v. Barnett, 73 Mo. 364. The very able and learned judge of the St. Louis court of appeals who prepared the opinion in Holloway v. Insurance Co., 48 Mo. App. 1, considered Insurance Co. v. Barnett as the controlling decision, and followed it, as required by the constitution of his court; and in this case Thompson, J., treated the point as decided by the Holloway Case, and as clear of all difficulty. Since then the Kansas City court of appeals, in Shoup v. Insurance Co., 51 Mo. App. 286, has followed Judge Rombauer's decision in the Holloway Case; so that it becomes very important to determine the effect of the Barnett Case. An examination of that case will show that the remarks of the learned judge who delivered that opinion were entirely "obiter dicta" as to this question of the divisibility of the contract. He says, "if such a stipulation was in fact in the policy," the plaintiff would be entitled to the full relief prayed; so that it is clear no such clause was before the court; and, while his opinion is entitled to respect on the supposed case, it is equally clear that the court did not overrule the decision in Loehner's Case or Koontz's Case, but, on the contrary, on the only point that was in fact before the court, those cases were treated as binding authority. Our conclusion is that so much of Judge Norton's opinion as referred to the entirety of the policy in the Barnett Case was obiter, and did...